Contentions

Not only witty conservative bloggers are calling for Patrick Fitzgerald to hang it up. In the wake of Blago’s largely hung jury, it has dawned on many more that the prosecutor is more persecutor and a menace to the justice system. The Wall Street Journalreminds us of Fitzgerald’s presser two years ago:

Then, the U.S. Attorney spoke of “what we can only describe as a political corruption crime spree” and accused Blagojevich of “the most appalling conduct” that would have “Lincoln roll over in his grave.” It was “a truly new low,” Mr. Fitzgerald told the world. … As the former Justice Department lawyer Victoria Toensing noted in these pages at the time, Mr. Fitzgerald violated prosecutorial ethics by speaking “beyond the four corners of the complaint,” to use the criminal law vernacular for the facts at issue, thus possibly tainting the jury pool.

As the WSJ editors point out, this is not an isolated occurrence. There is a pattern at work here — smear and intimidate, throw whatever charges you can at the vilified defendant, and see what the jury will buy:

At a 2005 press conference, Mr. Fitzgerald implied that Mr. Libby had obstructed his investigation into who leaked the former CIA analyst’s name, even though he knew from the start that the real “leaker” was Richard Armitage.

Then there was the railroading of Conrad Black, the conservative newspaper baron who was convicted in 2007 using the infinitely malleable “honest services” fraud law. The Supreme Court junked much of that law earlier this year, leading to Mr. Black’s release from prison. The jury had earlier dismissed nine of the 13 charges Mr. Fitzgerald filed.

Fitzgerald is lacking in the very qualities we must demand of prosecutors: discretion and restraint. The Washington Posteditors recognize this in their well-taken objection to Blago’s retrial:

Mr. Fitzgerald is entitled under the law to drag the ex-governor back into court. He has the resources to do so and the motivation: The Blagojevich brand of politics is repugnant, beyond any doubt. It perverts democracy and puts moneyed interests over the common good. But the prosecutor took his shot and lost. He should stand down before crossing another fine line — the one that separates prosecution from persecution.

Because Fitzgerald can’t or won’t recognize the difference between the two, it’s time for him to pack it in, albeit much too late for Scooter Libby and Conrad Black. One final thought: had the extent of Fitzgerald’s abuse of power been clear at the time, would President Bush have withheld a full pardon from Libby? We don’t know, but all this is further evidence of the need to rethink the notion of “special prosecutors,” who by definition are freed from the restraints that prevent ordinary prosecutors from running amok and abusing their power.